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Court says states can restrict access to public records

WASHINGTON — States may have little reason to restrict public records access to their own residents, but the practice is not unconstitutional, the Supreme Court ruled Monday.

The unanimous decision, allowing Virginia to favor its residents under its Freedom of Information Act, goes against media organizations and professional data miners that had sided with the law’s out-of-state challengers.

During oral arguments in February, several justices had questioned whether the state’s law served any purpose, since non-residents can hire residents to get information. In his ruling, Justice Samuel Alito noted much of the data is available on the Internet.

Still, Alito said, the state law “did not abridge any constitutionally protected privilege or immunity” because access to public records is not a “fundamental” privilege, such as employment.

While the Constitution’s privileges and immunities clause “forbids a state from intentionally giving its own citizens a competitive advantage in business or employment, the clause does not require that a state tailor its every action to avoid any incidental effect on out-of-state tradesmen,” Alito said.

The decision had been expected, since most of the justices’ questions during oral argument focused on the rights of states to favor their own residents. Justice Ruth Bader Ginsburg noted states can restrict who votes in their state. Justice Antonin Scalia said perhaps the state “didn’t want outlanders mucking around in Virginia government.

Why isn’t that reasonable?”

The federal government and all 50 states have laws giving people the right to inspect some government records through the Freedom of Information Act (FOIA). The laws are used by journalists, researchers and a growing industry that mines data from government records, which are used to do everything from selling real estate to setting credit scores.

At least seven states restrict that right to residents of the state. Their laws are protected by the Supreme Court ruling, but it doesn’t necessarily extend to other state laws that treat residents differently from non-residents.

The challenge to Virginia’s law began when Mark McBurney, a Rhode Island resident who used to live in Virginia, asked state officials for copies of records he hoped would shed light on why they hadn’t enforced an order requiring his wife to pay child support. Officials rejected his request because he had moved to Rhode Island.

McBurney and another man, Roger Hurlbert of California, sued, arguing that the residents-only limit violated the Constitution’s privileges and immunities clause and amounted to an improper restriction on interstate commerce.

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Our FOI Hotline (800) 580-6651 is available to anyone with a question concerning the Texas Public Information and Texas Open Meetings acts.

Watch Videos from Our Events

Future of the Texas Public Information Act panel discussion at the FOIFT Conference in 2016 on YouTube.
Lisa Falkenberg keynote speech at the FOIFT Conference in 2016 on YouTube.
Don Adams and Mark Updegrove at the FOIFT Conference in 2015 on YouTube.